McEachern v. Miller , 268 N.C. 591 ( 1966 )

151 S.E.2d 209 (1966) 268 N.C. 591

Neva McEACHERN, Administratrix of the Estate of Oscar McEachern, Deceased
v.
Dr. W. H. MILLER, Jasper Jones and Wayne County Memorial Hospital, Incorporated of Wayne County, North Carolina.

No. 365.

Supreme Court of North Carolina.

November 30, 1966.

Mitchell & Murphy, Raleigh, Earl Whitted, Jr., Goldsboro, for plaintiff appellant.

Smith, Leach, Anderson & Dorsett, Raleigh, for defendant W. H. Miller, M. D., appellee.

Dupree, Weaver, Horton, Cockman & Alvis, by Jerry S. Alvis, Raleigh, for defendant Wayne County Memorial Hospital, Inc., appellee.

HIGGINS, Justice.

The plaintiff instituted this wrongful death action against Jasper Jones, Dr. W. H. Miller, and Wayne Memorial Hospital, Inc. The complaint alleged: that about noon on August 3, 1963, Jones unlawfully and without provocation discharged "a firearm into the abdominal region of intestate's body * * *." Immediately thereafter, the intestate was taken to, and became a patient of, Wayne Memorial Hospital and of Dr. W. H. Miller, a staff physician of the Hospital. Both assumed the duties and responsibilities of providing medical treatment for the injuries. Dr. Miller failed to administer any treatment and the hospital, knowing of Dr. Miller's failure, also failed to provide treatment; that proper treatment would have saved intestate's life. The detailed allegations are set forth in paragraphs VI and VII quoted in the statement of facts.

The defendants filed separate demurrers upon the ground of misjoinder of parties and causes. The plaintiff, having alleged the wrongful death of her intestate resulted from the failure of Dr. Miller and the Hospital to provide proper medical treatment, which, if given, would have saved intestate's life, it is doubtful whether the plaintiff stated a cause of action for wrongful death against Jones. The rule of liberal construction does not permit the Court to write into a complaint facts which it does not allege. Johnson v. Johnson, 259 N.C. 430, 130 S.E.2d 876. Unless a cause of action is alleged against Jones, having him in the case would not be a misjoinder. If there is no case stated, there is no misjoinder. Batts v. Faggart, 260 N.C. 641, 133 S.E.2d 504. However, before the hearing on the demurrer, the plaintiff took a voluntary nonsuit as to Jones. "The nonsuit removed the defendants' objections raised by the first demurrer." Boles v. Graham, 249 N.C. 131, 105 S.E.2d 296.

The nonsuit as to Jones eliminated the main thrust of the first demurrer. However, in this Court Dr. Miller and the Hospital filed demurrers ore tenus upon the ground that there is still a misjoinder of parties and causes.

We think the complaint, when liberally construed, alleges a single cause of action based on the joint and concurrent negligence of both Dr. Miller and the Hospital in that both failed to provide medical treatment to an injured man who had a right to expect proper medical attention from both. The rule is stated by Barnhill, J., later C.J., in Bost v. Metcalfe, 219 N.C. 607, 14 S.E.2d 648: "The well established and familiar rule that a plaintiff may consistently and properly join as defendants in one complaint several joint tort-feasors applies where different persons, by related and concurring acts, have united in producing a single or common result upon which the action is based. 9 A.L.R. 942; Anno. 35 A.L.R. 410."

"``There may be two or more proximate causes of an injury. These may originate from separate and distinct sources or agencies operating independently of each other, yet if they join and concur in producing the result complained of, the author of each cause would be liable for the damages inflicted, and action may be brought against any one or all as joint tortfeasors'." Batts v. Faggart, supra; Riddle v. Artis, 243 N.C. 668, 670, 91 S.E.2d 894.

This action is for wrongful death, for which there may be only one recovery. Plaintiff alleged her intestate's death resulted from the joint and concurrent negligence of the hospital where he was duly admitted as a patient and of the hospital staff doctor who accepted responsibility for examination and treatment. The plaintiff further alleged that proper treatment which was due him would have saved his life; the lack of it caused his death. "If the facts alleged are sufficient to warrant recoveries against each defendant for wrong done only by that defendant, there is a misjoinder of parties and causes. Williams v. Gooch, 206 N.C. 330, 173 S.E. 342; Lucas & Lewis v. North Carolina Bank & Trust Co., 206 N.C. 909, 174 S.E. 301. In that event the demurrer should be sustained. If, however, the facts alleged show a joint invasion of plaintiff's rights warranting a judgment against defendants jointly, there has been no misjoinder." Nye v. Pure Oil Co., 257 N.C. 477, 126 S.E.2d 48.

In the case before us one cause of action (for wrongful death) is alleged and one recovery is permissible. Hence this case as to the Doctor and the Hospital falls in the "no misjoinder" category. This conclusion requires us to overrule the demurrers ore tenus filed here and to reverse the judgment sustaining the demurrers entered in the Superior Court of Wayne County.

Reversed.